Reporting Child Abuse is Critical and Complex

Reporting child abuse is complex and important. Failure to report abuse can leave children at risk. Recently, failure to report—and to do it promptly—has also given rise to criminal convictions for religious leaders, such as in the case of Bishop Finn of Kansas or the staff of Victory Christian Church. Reporting must be taken quite seriously, both for the sake of the children and the reporters.

Still, be wise before picking up the phone. Reporting statutes are complex, with many issues to consider.

First, in different state statutes, different persons are mandatory reporters. Some states require all adults to report. Some statutes require clergy to report. Some statutes provide an exemption for clergy-parishioner communications that take place under certain circumstances such as the confessional, but some don’t. (For an example of how this can create constitutional problems, breaking the seal of the confessional is a very serious offense under Catholic canon law, and may be so for other liturgical churches.) Consider who the mandatory reporters in the organization are, so you are prepared on how must report. The Internet tool, “Mandatory Reporters of Child Abuse and Neglect,” at the Child Welfare Information Gateway is a useful resource.

State statutes define abuse differently, especially with regard to the “fuzzier” issues like emotional abuse or spanking. Know what constitutes abuse in your state.

Different states define the level of belief or suspicion differently. Some use “reasonable suspicion,” which is a very low standard. Some talk about “reason to believe” or “cause to believe.” Some of the statutes define their standard better than others. Benjamin H. Levi and Sharon G. Portwood discuss the different standards in an article published in the Journal of Law, Medicine & Ethics called "Reasonable Suspicion of Child Abuse: Finding a Common Language." How clearly do you understand the level of probability it would take for you to report? An error in the direction of failure to report may leave a child abused or make you criminally liable. An error in the direction of a reckless report may damage a family needlessly (from unwarranted interference by the Department of Human Services or its equivalent), ruin someone’s career, or expose you to a lawsuit for defamation. Think through this carefully, perhaps with your counsel.

States define the time frame of reporting differently, both for when you must make the report and when the abuse happened. For current abuse, the time frame may be quite short, such as “immediately” or within 48 hours. Devote some thought to the matter ahead of time.

In some states, you must arguably report abuse that occurred when someone who is now an adult was a child. At least one state only requires historical reporting when a child or at-risk person is currently placed at risk. When abuse is historical or is outside the state’s jurisdiction, analyze carefully the decision to report and the basis for doing so.

States usually have some kind of immunity for good faith reporting. You would have to analyze whether this immunity extends to reporting of abuse that is not covered by the statutes. This might arguably change the standard for reporting. Making a report on “reasonable suspicion” when you are not shielded by the statutes could mean you are committing libel or slander. Instead, the reporter might need a good faith belief in the truth of the matter, which is likely to be a much higher standard of probability. A report might still be appropriate, but at a later stage after investigation. Consider when and how to make reports.

Reporting to other bodies than the state authorities may be appropriate in some circumstances, especially for religious organizations and international organizations—mission organizations are both. For abuse that happened overseas, the alleged abuse should be analyzed for a report to the federal government under the Federal Protect Act (which does not require mandatory reporting). Other possible avenues for reporting are denominational headquarters, mission organizations, home churches, embassies, consulates, or professional licensing organizations. While none of these are mandatory, not reporting could have serious consequences, including possible legal negligence in child sexual abuse cases, while reporting could also have serious consequences, such as defamation lawsuits. Think through how to report in ways that protect children and protect the organization.

Decisions on whether to report and when to do so are complex. Unless you are quite sure of your legal position in the given situation, it is wise to work with an attorney who practices in this area of law.

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